Following World War Ii, it became fashionable to dismiss the opponents of the Constitution as paranoid or, at least, "men of little faith," to quote the title of Caroline Robbins's extremely influential essay. [Update: Jack Rakove has reminded me that it was actually Cecilia Kenyon who wrote the essay in question.] Instead, the Constitution, if not perfect--there was the collaboration with slavery, after all--was far better than its anti-Federalist critics suggested, and the imperfections re slavery were "cured," or so it has been claimed, by a war that killed 2% of the American population and added the 13th, 14th, and 15th Amendments to the Constitution.

One of the things that some of the critics were exceedingly suspicious about was the pardoning power. George Mason, a distinguished Virginian who refused to sign the Constitution because of its lack of a bill of rights, noted that "the President of the United States has the unrestrained Power of granting Pardon for Treason; which may be sometimes exercised to screen from Punishment those whom he had secretly instigated to commit the Crime, and thereby prevent a Discovery of his own guilt." Luther Martin, a somewhat less distinguished but extremely interesting non-signatory from Maryland (who also raised questions about the collaboration with slavery), also objected to the potential "attempt [of the President] to assume to himself powers not given by the constitution, and establish himself in regal authority; in which attempt a provision is made for him to secure from punishment the creatures of his ambition, the associates and abettors of his treasonable practices, by granting them pardons should they be defeated in their attempts to subvert the constitution."

So how does one assess the pardon of I. Lewis ("Scooter") Libby against these fears expressed by Mason and Martin (and other anti-federalists). If one could be confident that Bush were being truly "compassionate" in not wishing to take Libby from his family, that might be one thing, but, of course, there's not a scintilla of evidence that Bush possesses a compassionate disposition in general. Consider his conduct both as Governor and as President with regard to his use of the pardoning or commutation power, especially in capital cases; this is not a man who cares one whit about the consequences for actual human beings and their families caught up in the Texas or US legal systems. More plausible is the view that Libby was indeed part of a cabal engaged, not in "treason," but in "attempts to subvert the constitution" in a number of insidious ways, including character assassination of anyone so bold to suggest that the Administration was less than trustworthy in its arguments for going to war. What "Scotter" knows, and is most certainly not talking about, is who were his confederates in this cabal besides the Vice President of the United States. We have good reason to believe that Karl Rove was also involved, and by that point we're getting very, very close to the Oval Office.

I really don't advocate doing away with the pardoning power, because it is important to retain the ability to temper justice with mercy. But the Libby pardon is ample proof that nothing comes for free, and that we might be well advised to listen to those like Mason and Martin, who did indeed have little faith that our leaders would necessarily exemplify the kind of civic virtue necessary to maintaining a constitutional republic. For Bush, the "Republican Form of Government" is equivalent to "Government by the Republican Party." I don't think the Framers would have agreed.

I remember reading Patrick Henry's speech in the VA convention in which he offered a parade of horribles if the new Constitution were ratified. All of them -- including his (in)famous "They'll free your niggers." -- at least arguably came true.

That doesn't mean, though, that the Constitution wasn't, overall, a good thing. Some of Henry's fears were for things we now applaud (ending slavery). Others are simply part of the price we pay for granting power -- every such grant carries with it the potential for abuse, but without a grant of power, government can't actually accomplish anything.

I've tried hard to think of ways to "check" the pardoning power, but it's not easy to do that without eliminating some of the benefits.

One solution might be to make it necessary for a person to be convicted before issuing a pardon, and for a sentence to be handed down before it's commuted. Otherwise, Dubya's going to be passing out pardons and commutations like party favors before he leaves office.

So it is ok for the president to break the law, flout the constitution, lie to the American people, and protect his people by issuing pardons and commutations to save them (and himself) from prosecution.

And all because he hasn't been impeached.

Under the same logic, murder isn't illegal or immoral if you aren't arrested and convicted, either. Sure, the neighbors may complain about the smell and the flies, but if the police don't haul you in, you're good to go.

Last I checked, laws against murder were an adequate "check" as well (even if you are an unborn child and your father kills you -- now, it's a different story if your mother wants to kill you -- then you're good to go).

What is far and away the most fascintating aspect (at least to me) of the commutation of SL's prison term is that Bush contended that the punishment was unreasonble or too harsh.

Ok, but it was within the USSG; in other words, a guidelines sentence (presumptively reasonable) . . . so does that make the USSG unreasonable in toto? Will Bush champion some legislation to repeal the harsh guidelines? Less fantastically, will he commute the sentences of those who have been given 100 times the punishment because they got caught with cocaine in crack form rather than powder?

The pardon/commutation power is probably a good thing -- tangentially, I don't ever want to hear another GOPer mention Marc Rich's name ever again -- and CLinton pardoned a *lot* of people for various reasons.

But the reason why this bothers so many people viscerally is that because they know the only reason SL will be sleeping at home during the next 2 1/2 yrs is because he's part of (Republican) political elite.

A rule of law based on avoiding responsibility, and cheering when persons are not held accountable for their actions or (in some cases) inactions, is what you are praising in Libby's commutation.

Claiming that so long as he isn't impeached, a President's actions are not wrong or un-Constitutional avoids the President's positive duties to faithfully execute the laws and defend the Constitution.

You prefer raw power politics to law. Stop trying to conflate the two in your defenses of the high crimes and misdemeanors of this administration. I know you will stop when you stop your attempts to undermine our Constitution and the laws of our country.

Libby's felony conviction, fine and probation is still a hell of a lot more than Armitage got for leaking Plame's name in the first place. And, without a doubt, if Marc Rich's pardon was fine, then so is Libby's.

At least you and I agree with Levinson: "I really don't advocate doing away with the pardoning power" : )

no pardons during the period, 1 week before a national election (i.e. presidential or congressional) through January 31 of the following year.

This is an excellent idea.

no one who was employed in the executive branch within the last 8 years can be pardoned

Suppose the President receives intelligence that a military coup is being planned. S/he may need to offer a pardon to someone with knowledge in order to gain information on those more directly involved. Or suppose Captain Dreyfuss was wrongly convicted of espionage under Administration A. Should a successor President (B or even C) be unable to pardon him?

I never said it was O.K. for any President to break the law, flout the Constitution, and lie to the American people -- if he / she refuses to resign, such a President should be impeached and convicted -- what part of that is so hard to understand?

So you now disagree with Bush's illegal acts and support his impeachment--congratulations for finally letting the scales fall from your eyes. It seemed like you advocated, up until this point, raw power politics unless a President was impeached. I'm glad you came to your senses.

No, I don't agree and you know it -- I never said THIS President has broken the law, flouted (sp?) the Constitution, and lied to the American people -- I was speaking hypothetically, if he had he should be impeached and convicted, of course.

1) no one who was employed in the executive branch within the last 8 years can be pardoned:

It makes sense to remove the president's ability to pardon anyone who has worked in the executive branch, but with no time limit. Note that I'm not advocating dismissing the presidential pardon power altogether. For those who have worked in a the executive, a procedure could be provided for a vote in congress to provide relief similar to a pardon for appointed executive employees. Take a selected power away from one branch, give it to another.

Isn't the rule of law supposed to be non-arbitrary? Then what is the need for pardons? Aren't pardons directly and inherently counter to the very concept of the rule of law? Judges can already take mitigating circumstances into account. Why do we need a mechanism that arbitrarily undoes the rule of law?

Also, whatever the need for a pardon power to temper the outcomes of the rule of law, didn't the Founders make a gigantic mistake in allowing the president to pardon members of their own administration? The conflict of interest and potential for abuse is obvious.

I think we need a constitutional amendment that prevents presidents from pardoning members of their own administration. It's crazy to pretend to bind the president by law but then to also give them a get out of jail free card that allows them to exempt members of their own administation from those same laws.

Is there really even a law that can be said to be in place if there are no consequences of violating said alleged law? Doesn't that make the law essentially voluntary, which is to say not a law at all?

For most of our history, presidents showed restraint and didn't abuse their pardon power to escape accountability for crimes. But Republicans from Ford to Bush I to Bush II are making a habit out of abusing this power.

I believe that the quote you attribute to George Mason is from anti-federalist #67, signed Cato. Authorship is unknown but generally attributed to George Clinton, the governor of New York and Vice-President under Jefferson and Madison.

[Prof. Levinson, from the post]: So how does one assess the pardon of I. Lewis ("Scooter") Libby against these fears expressed by Mason and Martin (and other anti-federalists).

There is a certain irony that the antics of the Federalist Society-infested claque in today's maladministration would prove to be the "sum of all fears" of original anti-Federalist founders. Perhaps I'm being too hard on the Federalist Society for its usurpation of the term "Federalist". They certainly haven't shown themselves to be fans of a small federal gummint of constrained and very limited power. Perhaps they are in fact the ultimate in "federalism" themselves. Or perhaps they're just RW authoritarians (nee fascists). See also Greenwald's new book, A Tragic Legacy....

I don't think we need an amendment -- justice always needs to be tempered with mercy -- Alexander Hamilton makes a strong defense of the pardon power in The Federalist Papers, particularly in No. 74. Shall I quote therefrom?

"Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt."

Charles: Oh, goodie, I will pull out my old copy of The Federalist Papers, and someone else is going to pull out The Anti-Federalist -- what an exciting way to spend the 4th of July!!!

I can't quite sign on for that agenda...my wife will kill me if I try to make tomorrow about Balkinization. But in the spirit of good faith, here's a pair of links, first to a Project Gutenberg copy of "The Federalist Papers", second to "The Anti-Federalist Papers" at University of Tulsa Professor Rice's stunning collection of important documents.

A strictly partisan question for our own Professor/Hosts: Why is it that the Anti-Federalist papers are so much harder to find? Strictly copyright? Or has the opposition been that much more successful in getting volunteers to create an edition that meets Project Gutenberg's standards. Could the ACS be induced to provide some resource similar in spirit to this one at UTulsa?

@Charles: While it is assumed the Anti-Federalist papers are numbered more or less in relation to correspondingly numbered papers from Publius, it must be noted that AF#74 doesn't actually use the word "pardon." But it's damning view of the elected monarchy can, I think, fairly be thought to apply to the singular power of the pardon as much as to any other of the tyrant's powers:

"There is not a tincture of democracy in the proposed constitution, except the nominal elections of the president general and the illustrious Congress be supposed to have some color of that nature. But this is a mere deception, invented to gull the people into its adoption. Its framers were well aware that some appearance of election ought to be observed, especially in regard to the first Congress; for without such an appearance there was not the smallest probability of their having it organized and set in operation. But let the wheels of this government be once cleverly set in motion, and I'll answer for it, that the people shall not be much troubled with future elections, especially in choosing their king -- the standing army will do that business for them.

The thoughts of a military officer possessing such powers, as the proposed constitution vests in the president general, are sufficient to excite in the mind of a freeman the most alarming apprehensions; and ought to rouse him to oppose it at all events. Every freeman of America ought to hold up this idea to himself: that he has no superior but God and the laws. But this tyrant will be so much his superior, that he can at any time he thinks proper, order him out in the militia to exercise, and to march when and where he pleases. His officers can wantonly inflict the most disgraceful punishment on a peaceable citizen, under pretense of disobedience, or the smallest neglect of militia duty."

I hear you about the wife. Any American political scientist worth his weight has "The Complete Anti-Federalist" compiled by Herbert Storing. But, wouldn't the issue of accessibility be similar to how history is written by the victors?

Also, the Anti-Federalists got their Bill of Rights -- what more did you expect -- thanks for the excerpt, but they were at least proven wrong about "the people shall not be much troubled with future elections" part ; )

To quote Dude Crush from "Finding Nemo," "Yo, Mr. [Link] is my _father_." Call me Robert, please, or "Yo" or "dude," or even, "friend", in that "loyal opposition" sense of the word.

Any American political scientist worth his weight has "The Complete Anti-Federalist" compiled by Herbert Storing.

I got to the game late; it's one of the reasons I'm so uneven in my manner here. I sometimes get a tad insecure about gaps in my grounding. Not my basic reasoning abilities, but definitely my grounding in certain areas of content with which I should truly be much more conversant.

But, wouldn't the issue of accessibility be similar to how history is written by the victors?Could well be. Except I won't cede the game to [expletives deleted] such as Scalia or others of the Federalist Society.

...they were at least proven wrong about "the people shall not be much troubled with future elections"Yes and no; we get them, they aren't precluded, yet, by dictates of the C-in-C. But many of us fear the current administration would attempt exactly that if provided with, say, someone pulling off a sequel to nine-one-one between now and November 08. And even absent such malfeasance on the part of the reigning monarch elect, the electorate has been largely disenfranchised through a successful anti-intellectual tradition which leads the largest number of voters at home thinking their vote...and political action in the campaigns...is wasted. To that extent Philadelphiensis was spot on.

**of course, the words "except in cases of impeachment" arguably limit the ability to prosecute libby for his other crimes -- does anyone know of authority that defines what "in cases of" means? is it inclusive or exclusive?

There is no better example of a crisis than what we face now. But, the only difference I see between our system and some easier to escape from system of hell is that we require a few more votes. In the end, we need a certain number of votes, some procedure to follow to replace our president and/or vp. But the assumption of an improvement is based upon the belief that some lower number of votes better expresses the true will of the people.

I'm somewhat distressed that, for instance, certain actions are not done because they could consume so much time in the congress. In fact, trial in the congress would take much less time than in the judicial branch. This very fact should be exploited fully: congress can get to the bottom of this matter as quickly as they want.

This is an actual question, which as a law student I'm not qualified to answer: how does the commutation square with U.S. v. Nixon? According to the GAO, Fitzgerald's appointment by Comey reads:

"By the authority vested in the Attorney General by law, including 28 U.S.C. 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.

In February 2004, Acting Attorney General Comey clarified Special Counsel Fitzgerald's delegation of authority to state that the authority previously delegated to him is plenary. It also states, 'Further, my conferral on you of the title of Special Counsel' in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.'"

Nixon reads, in relevant part:

"So long as this regulation is extant it has the force of law. In United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), regulations of the Attorney General delegated certain of his discretionary powers to the Board [418 U.S. 683, 696] of Immigration Appeals and required that Board to exercise its own discretion on appeals in deportation cases. The Court held that so long as the Attorney General's regulations remained operative, he denied himself the authority to exercise the discretion delegated to the Board even though the original authority was his and he could reassert it by amending the regulations. ...

Here, as in Accardi, it is theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor's authority. But he has not done so. So long as this regulation remains in force the Executive Branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it."

Oooh the pesky Constitution. How will we ever survive it? That pesky First Amendment. Allowing all kinds of seditious and even pornographic speech. That pesky Fourth Amendment. Tying the hands of the police when they really need to search some criminal's house. That pesky Sixth Amendment. The taxpayers having to pay for some criminal's public defender -- the horror! Damn that Constitution. What we need is some common-sense liberal progressives who know what's best for all of us.

As to the proposals, one is much too broad, the other too narrow to warrant amendment, and I'm not sure it is a great idea anyhow.

Is there really much evidence, for instance, that commutations etc. are a problem before congressional elections? If so, if one one is done ten days beforehand, much change?

Likewise, we are talking a three month period. One can think of various scenarios (including a death sentence) in which it would be fundamental to have the option available.

BTW, can we stop calling him "Scooter?" The name is inane. And, I mean in ( ) too, as if it is req. because it is his legal name or something. It partially makes him like some good old boy. Are we going to start calling people by Bush's pet names too?

Last I checked, laws against murder were an adequate "check" as well (even if you are an unborn child and your father kills you -- now, it's a different story if your mother wants to kill you -- then you're good to go).

# posted by Charles : 4:01 PM

A significant "reason" for your intellectual dishonesty is that you ignorant not only of history, and the actual role of "religion" in pre-"revolution" America, but also of actual factual theology.

For one, never in law has a fetus been defined as a "child" or "unborn child" -- you swallowing and perpetuating of that lie a pseudo-law notwithstanding.

For another, the "Bible" does not prohibit abortion until "quickening" -- until the fetus first kicks.

As for "religion" in America, MA-Bay is a particularly illustrative example. Until its constitution of 1780, there was no separation of powers. That means the gov't -- the General Court -- not only enacted the laws, but also enforced them, and prosecuted violations of them -- a string of obvious conflicts of interest.

For another, in order to vote, and run for and be elected to office, one had not only to have sufficient assets, one also had to have the "right" "religion". Anyone with the "wrong" "religion" was excluded from the political process -- but not from the penalties of the laws enacted by that political process.

Roger Williams was banished from MA-Bay because he had the "wrong" "religion": he preached freedom of conscience, and founded Rhose Island on that principle. If you look up the date of that founding, you'll find it was long before the "revolution," the "Declaration of Independence," the Articles of Confederation, and the US Constitution and Bill of Rights. However, even in MA-Bay, with its totalitarian theocracy, a militia act from crica 1645 included an exemption from militia duty for those "religiously scrupulous of bearing arms" -- and implicit recogniztion of freedom of conscience.

Quakers, perhaps because they preached non-violence within a viciously "religious" sociopolitical environment, were imprisoned and whipped, and hanged, which eventually resulted in a scandal: three Quakers, to men and a woman, were arrested and sentenced to death. All three were brought to the Boston Common "hanging tree" and the two men hanged -- at the last minute, the woman, Mary Dyer, was reprieved and banished. However, she made the mistake of returning to MA-Bay, and she then was hanged.

Getting the picture? Not only is your anti-historical utopian notion that it would be lovely to have a theocracy stupid, it is naive -- unless there is a guarantee that your "religion" will be the only "religion" and the "religion" in charge.

Catholics -- papists -- were also hated. They too were banished -- and, by statute, to be executed if they returned after being banished. (There was an exception made for Catholics who had the misfortune of being shipwrecked on MA-Bay shores: they were to be dried out, fed -- and then banished).

Anne Hutchinson was another banishee -- for having the "wrong" "religion": she preached freedom of conscience. Freedom of conscience, if there is a God, and man is created in that God's image, is therefore God-given. Tyranny, by contrast, even when based upon the "Bible," prohibits that part of that God's requirement of man: freedom of conscience.

Recall that Roger Williams founded Rhode Island on the principle of freedom of conscience -- and that that was during the 1600s. That freedom was also imported into what became Pennsyvania by William Penn. And you want us to believe that their is no right to freedom _from_ "religion"? That there isn't actually separation of church and state? Roger Williams founded the _gov't_ of Rhode Island on the principle of freedom of conscience. And that same freedom is incorporated in all first constitutions of the Original Thirteen -- all those adopted in 1776-77, and 1780. And yet you want us to believe your ignorance of history that the Framers of the US Constitution, and Bill of Rights, left out that history? -- the sources for the Constitution and Bill of Rights were those state constitutions, and their bills of rights. That the Framers forgot their own experience with religious bigotry and intolerance? If so, then you demand we be as and remain as ignorant of the actual history as are you -- all so you can make claims which are absolutely false, simply because they meet your politically correct stupidity about the history of "religion," and its abuses, both in Europe and in the colonies. All because they meet your ignorance of the actual contents of the "Bible" as concerns such as abortion.

In another thread you made claims about "religion" and the public schools during the period of an after the Framing -- which was refuted by Arne by his pointing to the fact that public schools did not exist during the period about which you made your preferred -- but utterly false -- claim.

The bottom line is clear, regardless your blind view of yourself: you are not qualified to speak factually about American and US history, about American and US law, or about actual theology, and the actual history of "religion" on this continent, and in the various colonies.

Worse: you refuse to learn, so long as the facts do not fit the paradigm which is your ignorance. Surrendering a false belief, to you, is tantamount to heresy -- even though the central claim made by religionuts such as you as that you possess (and imposibility) the Truth. Ask yourself: if your paramount concern is Truth, then why do you lie so in defense of your falsehoods and ignorance?

Libby's felony conviction, fine and probation is still a hell of a lot more than Armitage got for leaking Plame's name in the first place. And, without a doubt, if Marc Rich's pardon was fine, then so is Libby's.

At least you and I agree with Levinson: "I really don't advocate doing away with the pardoning power" : )

# posted by Charles : 4:25 PM

Again, ass, you reveal your ignorance of the law -- and your preference for your uninformed opinion to the rule of law.

Armitage was not charged because of the issue of _mens rea_ -- insufficient evidence. If one is a reputable prosecutor, as is Fitzgerald, one does not indict on insufficient evidence. And the insufficiency of the evidence was result of Libby's perjury.

And the Marc Rich pardon (which was only partial) -- for which "Scooter" Libby successfully lobbied Clinton -- has nothing in common with the Libby commutation. Rich's alleged crimes were money crimes. Libby's crime undermined national security -- treason. Doughtless, though, you view money crimes as more serious than treason -- because Rich was pardoned by Clinton. Had Rich instead been pardoned by a Republican -- as was the major heroin trafficer pardoned by Daddy Bush -- you'd never make mention of it.

Again: Rich's pardon was not total: he was absolved of criminal charges which had been repeatedly shown -- by Libby -- to be bogus; and the civil side of his sentence was rearranged to the lesser convenience of Rich.

I'd demand you know the facts, and state them accurately, before you open your yap. But we all know that you claim to be some sort of morally superior Christian, and by that means claim exemption from the rules which apply to being that, such as "Thou shalt not lie" and "Thou shalt not lie against others".

No, I don't agree and you know it -- I never said THIS President has broken the law, flouted (sp?) the Constitution, and lied to the American people -- I was speaking hypothetically, if he had he should be impeached and convicted, of course.

# posted by Charles : 4:36 PM

Torture is a war crime -- even when the US does it. And as it is defined in and prohibited by the law of the land -- the Constitution -- it cannot be made legal by Congress, Executive, or even both with the approval of the Judiciary.

And we have the memoes which attempt to make it legal as signed by, also, Bushit. There are two degrees of crime: misdemeanor, and felony. A High Crime is a felony. Obviously, torture (defined in Federal law as a felony) is a High Crime, therefore an impeachable offense.

In addition, torture is defined in and prohibited by international law, which applies to the US, and which cannot be unilaterally changed by the US.

The only way to know those facts, and yet oppose impeaching Bushit, is to flat out lie. And we know what you will do in the face of those facts: you will (continue to) lie. Even as you claim to be a Christian while simultaneously ignoring your blatant hypocrisy.

Isn't the rule of law supposed to be non-arbitrary? Then what is the need for pardons? Aren't pardons directly and inherently counter to the very concept of the rule of law? Judges can already take mitigating circumstances into account. Why do we need a mechanism that arbitrarily undoes the rule of law?

# posted by cmarshall4 : 4:44 PM

There is a case during the Civil War that comes to mind.

A woman went to the White House and appealed directly to Lincoln. Her husband was in the Union army, and received news of a death in the family. It was such a situation that he needed to be there, at least briefly. He asked for leave but was denied it, so he weent AWOL. After he dealt with his responsibilities he voluntarily returned to his unit. He was ultimately sentenced to death.

Lincoln granted pardon then-and-there.

One would not want to prohibit such magnanimous and just mercy.

I might be for limiting the pardon power -- but not until looking at the legitimate exceptions.

I hear you about the wife. Any American political scientist worth his weight has "The Complete Anti-Federalist" compiled by Herbert Storing. But, wouldn't the issue of accessibility be similar to how history is written by the victors?

# posted by Charles : 6:11 PM

Problem being that Storing's Complete Anti-Federalist is nowhere near "complete". See Kaminski on the issue.

I believe that the quote you attribute to George Mason is from anti-federalist #67, signed Cato. Authorship is unknown but generally attributed to George Clinton, the governor of New York and Vice-President under Jefferson and Madison.

A strictly partisan question for our own Professor/Hosts: Why is it that the Anti-Federalist papers are so much harder to find? Strictly copyright? Or has the opposition been that much more successful in getting volunteers to create an edition that meets Project Gutenberg's standards. Could the ACS be induced to provide some resource similar in spirit to this one at UTulsa?

# posted by Robert Link : 5:43 PM

For several reasons. For one, unlike the anti-Federalists, the Federalists were organized and focused (and the majority of the delegates to the Constitutional Convention). Thus all the Federalist papers were written by three (four, actually) authors, former delegates. (On the other end of the spectrum were three delegates who refused to sign the final Constitution.)

The anti-Federalists were all over the place, and disorganized. (They lived up to their "decentralization".)

As for finding an "Anti-Federalist" or "Anti-Federalist Papers," there isn't at this time any such thing. There is a lenthy on-going project (U. of MI, I believe) of making a "complete" anti-Federalist, it already multi-volume. Do a search on Amazon.com on anti-federalist and kaminski.

There are several selections of "anti-Federalist" papers, but it is presently impossible to determine if they are accurately representative, as not all have been published after the first time (again, see Kaminski). These are two, though I don't know their current status -- whether still in print:

Storing's The Complete Anti-Federalist isn't actually anywhere near "complete" (again, see Kaminski), is out-of-print, and I don't see it on any used/rare/antiquarian book lists. (Storing's What the anti-Federalists WereFor is available in paper, apparently still in print.) There is also a single-volume of Storing's Complete.

One should be able to find Storing's Complete in any halfway decent law library. But reading only one of those, or not taking note of Kaminski, isn't sufficient.

BTW: copyright isn't an issue, as concerns the papers themselves; it is, though, for any added material, such as forewords, introductions, etc.

jnagarya said, "I might be for limiting the pardon power -- but not until looking at the legitimate exceptions."

I sympathize with your view but my statement that you were reacting too specifically suggested eliminating the pardon power ONLY in cases involving members of the president's administration (I would also add: or in any other case of a conflict of interest). Your example of the civil war soldier who went AWOL would not apply.

On the bibliographical front, I would also recommend Bernard Bailyn's two volumes for the Library of America on the ratification debate over the Constitution. It is organized chronologically, and one gets a good sense of many of the actual debates (which tended to focus on issues, including the pardoning power, that are almost toally absent from the arguments roiling today's "originalists" and "anti-originalists").

The Federalist has the advantage of being written by the winners and, I must concede, being far better written than almost all of the opposition essays. On the other hand, this is no excuse for treating them as the definitive originalist interpretation of the Constitution, as is sometimes done. Not only, of course, were most of the essays published well after most of the states had already finished ratifying the Constitution; they were also tendentious propaganda crafted for the specific New York audience.

On a substantive note, I find quite attractive the notion that a president should be deprived, through amendment, of the power to affect the sentence of any political appointee to his or administration. (To extend this to any member of the "executive branch" would reach too many people, most of whom could not plausibly be viewed as raising the kind of serious conflict-of-interest questions that the Libby commutation does.)

I suppose it is only to be expected that people here seem to suffer from the delusion that amendments to the law will cure what is, fundamentally, a disregard for the rule of law.

As we have already seen, the effect of charging and proving, in a fair court, that Libby committed perjury and obstruction of justice, is that now political appointees routinely lie when they safely can, and refuse to testify when they cannot safely lie. If the power of the pardon is removed or circumscribed, all that will happen is that the President will be far more loathe to appoint a AG or special prosecutor who will be anything but a thinly-gloved hand of the administration.

If there is no respect or willingness to abide by the rule of law, the rule of law cannot compel, even if the law, as all-too-often is the case, does not provide a loophole for the unscrupulous to evade its intent.

I say, leave the constitution as it is and do what we can to turn out of office and prevent the election of those who, like this administration, are fundamentally anti-democratic and do not respect the rule of law.

Let us pledge to work for the defeat of all those candidates who have not publicly repudiated this egregiously unfair use of the President's power.

The AG doesn't have any power to pardon so couldn't have delegated it.

But the justiciability decision in Nixon doesn't turn on delegation. The AG doesn't have the power to assert executive privilege, either. Nixon reads:

So long as this regulation remains in force the Executive Branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it.

This setting assures there is "that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S., at 204 . Moreover, since the matter is one arising in the regular course of a federal criminal prosecution, it is within the traditional scope of Art. III power. Id., at 198.

It seems to me quite clear that commuting a sentence in the middle of an appeals process constitutes interference "in the regular course of a federal criminal prosecution." Further the distinction that Bush is making between the jury's conviction and the judge's sentence isn't tenable under Apprendi.

More specifically, Marbury and the Appointments Clause vest a right in the Prosecutor, and Marbury notwithstanding, the pardon-power cases (e.g., Knute) specifically limit the President's ability to interfere with vested rights via pardoning. Why doesn't Fitzgerald have standing under Nixon to preserve the sentence?

jnagarya said, "I might be for limiting the pardon power -- but not until looking at the legitimate exceptions."

I sympathize with your view but my statement that you were reacting too specifically suggested eliminating the pardon power ONLY in cases involving members of the president's administration (I would also add: or in any other case of a conflict of interest). Your example of the civil war soldier who went AWOL would not apply.

# posted by cmarshall4 : 12:34 PM

That's sufficently specific to explore: where there is obvious conflict-of-interest/loophole allowing the self-serving.

"The Federalist has the advantage of being written by the winners and, I must concede, being far better written than almost all of the opposition essays."

My concern with the quality of the writing is virtually nonexistent. Rather, it lies with the treatment of The Federalist, especailly by the right-wing anti-Federalists (who have grabbed the wrong "bible"), as somehow the definitive end-all-and-be-all as to the intents of the Framers. It has no more legal authority than do the innumerable anti-Federalist writings.

You do touch on this in pointing out that it was a series of propaganda documents -- an admitted "advertisement" intended to "sell" ratification of the Constitution written by a pro-ratification bloc. (See the definitive The Federalist, Cooke, Wesleyan.)

Add in that there were some 42 (or 50+ -- everyone has their preferred math) delegates to the Constituional Convention, of which only three (4, actually) wrote The Federalist papers. (Cooke, id., incorporates and indicates the changes in the Federalist papers in the editing together of them as The Federalist.)

"On the other hand, this is no excuse for treating them as the definitive originalist interpretation of the Constitution, as is sometimes done."

Not them alone. Or even them. The debates have legal authority.

"Not only, of course, were most of the essays published well after most of the states had already finished ratifying the Constitution [sic -- I think that dating is incorrect]; they were also tendentious propaganda crafted for the specific New York audience [but were also repulished in other states in advance of those other states' ratification conventions].

Otherwise, agreed, as detailed above.

"On a substantive note, I find quite attractive the notion that a president should be deprived, through amendment, of the power to affect the sentence of any political appointee to his or administration."

At first blush, and under the pressure of current circumstances, this is attractive. But not only do you not proivide any reasons or argument for such, I can't assess your full view on it. As well, when it comes to toying with the Framers' work, one must first do extensive -- and exhausting -- research and study before arriving at any firm conclusion/s.

"(To extend this to any member of the "executive branch" would reach too many people, most of whom could not plausibly be viewed as raising the kind of serious conflict-of-interest questions that the Libby commutation does.)"

True.

# posted by Sandy Levinson : 2:33 PM

Now, where did I see you assert that the anti-Federalist papers should be taken more seriously as to interpreting the Constitution? I agree -- but only if one reads them for what the Constitution is NOT: those who lost the argument have no legitimate say in what was meant by the winners of the argument; there intents were not only different but diametrically opposed.

As well, the "role" of the anti-Federalists in the later adoption of the Bill of Rights is both over- and misstated by the pro-anti-Federalist crowd.

First, Federalist Madison successfully persuade the Constitutional Convention, with not much real opposition, that a Bill of Rights wasn't necessary. That killed it in that instance.

The MA-Bay ratifying convention set the ball rolling by including proposed amendments with its Notice of Ratification. But those proposed amendments were written by prominent Federalist (and conservative merchant) Theophilus Parsons. And the Constitution was ratified without a Bill of Rights.

So it was killed in that instance.

The proposed Bill of Rights that was eventually debated by Congress and subsequently ratified was codified and submitted by a Federalist named Madison.

All along, the anti-Federalists were defeated re. a Bill of Rights -- and then it was co-opted as an issue, written in initial form, and submitted to Congress for debate, by the Federalists.

More specifically, Marbury and the Appointments Clause vest a right in the Prosecutor, and Marbury notwithstanding, the pardon-power cases (e.g., Knute) specifically limit the President's ability to interfere with vested rights via pardoning. Why doesn't Fitzgerald have standing under Nixon to preserve the sentence?

# posted by A : 10:08 PM

Excellent points and question. PErhaps Fitzgerald does, as his statement on the commutation, if I recall correctly, is that he intends during the appeals process to preserve the conviction. How that relates to the portion of the sentence commuted I don't know.

But, clearly, Bushit is interfering in the process wholly contrary to his claim that he wouldn't comment on or intervene in "ongoing" court actions.

The proposed Bill of Rights that was eventually debated by Congress and subsequently ratified was codified and submitted by a Federalist named Madison.

Yes, and that supports the idea that sometimes you can fix it later.

However, the problem Mason identified with the President's pardon power remains, 221 years later with no fix in sight. Sometimes accepting a flawed design because you believe its flaws will be fixed later is a bad idea.

Now, if you believe the design, flaws and all, still beats the alternative, that's different. You can still support it and still strive to fix its flaws later but it's still worth having even with its flaws. That's where I happen to come down.